This
class certification issue was previously before this Court on
defendants' appeal of the certification of a class
related to an alleged toxic waste release at 2400 Canal
Street, a building that operated as an Annex to New Orleans
City Hall from 1982 until 1999. In the previous appeal, we
vacated the trial court's judgment certifying the
proposed class and remanded because there was no precise
definition of the class. See Anderson, et al v. City of
New Orleans, 16-1013 (La.App. 4 Cir. 6/14/17), 222 So.3d
800. On remand, the trial court issued Amended Reasons for
Judgment, again indicating that plaintiffs had met the
requirements of La. Code Civ. P. art. 591, certifying the
class, and defining the class according to plaintiffs'
proposal, as follows:

All persons who had an employment relationship with (meaning
reported to work at) the building located at 2400 Canal
Street ("The Annex") from 1982 to December 9, 1999
and who were exposed to toxic chemicals stored in the
basement of the building at any time from August 1982 until
December 9, 1999 and who suffered injury as a result of that
exposure.

Defendants-appellants-the City of New Orleans ("the
City"), NID Corp., [2] and Pan-American Life Insurance Company
("Pan-Am")-separately appealed the trial
court's certification of the class and the class
definition. We consolidated the defendants' appeals for
our consideration. After careful review of the record and
consideration of the trial court's amended judgment,
amended reasons for judgment, and the applicable law, we
reverse the trial court judgment certifying the class and
remand for further proceedings.

FACTS
AND PROCEDURAL HISTORY

The
City began occupying the building at 2400 Canal Street in
1982 as a lessee but purchased the building in 1985 from
Poydras Square, a predecessor to defendant-appellant NID
Corporation. Before Poydras Square acquired it in 1982, the
building was owned and occupied by Pan-Am. According to
plaintiffs' recitation of the facts, Pan-Am used to print
its own brochures, and the chemicals used in the printing
processes were stored in the basement in barrels or drums.
Plaintiffs allege that barrels of chemicals remained in the
basement through changes in ownership from Pan-Am to Poydras
Square in 1982 and from Poydras Square to the City in 1985.
Plaintiffs further allege that when the City acquired the
building, the barrels were not removed.[3]

On
December 9, 1999, approximately 17 years after the City
assumed occupancy of the Annex, there was a chemical leak and
"smoke" emanated from the east room in the basement
where the barrels were stored. The New Orleans Fire
Department responded to a call and, upon discovering that the
smoke was caused by chemical vapors, dispatched its own
HAZMAT team and also called United States Environmental
Services ("USES"), a hazardous materials removal
team.

According
to a report authored by District Fire Chief Dave Tibbetts,
the Fire Department called for an evacuation of the building
"because of the potential complete release of the
chemicals while the drums were being over packed." USES
secured and removed 19 barrels containing aqueous solutions
of various acids and bases. The December 9, 1999 report
prepared by USES explains that the "initial
assessment" was that three drums of corrosive material
containing a combination of sodium 2-mercaptobenzothiazole
and potassium hydroxide were leaking.[4] A HAZMAT crew over packed
these three leaking metal drums by placing them in even
larger drums for removal. A second crew then entered the area
to neutralize any spilled material and to remove other
contaminated material from the room, such as parking meters,
immobilization devices (boots), and other equipment.
According to the report, USES also removed an additional 16
(plastic) drums, "all of which contained (1-Hydrofluoric
acid, 3-Hydrochloric acid, 12-Mineral acid)." The USES
report states: "there was liquid on the floor
surrounding the drums, and a pH test indicated the liquid was
acid." The next day, USES continued to remove
contaminated material. According to the USES report, "it
was impossible to identify which drums of acid were
leaking." Thus, all 16 (plastic) drums were over packed
in much larger drums. The over-packed drums were sent to
Pollution Control Industries (PCI) for disposal. According to
the PCI Material Data Surveys, there were 12 drums of
"mineral acid, " three drums that contained
concentrated hydrochloric acid and water, one drum of Aluma
Brite, which contains 10-15% of hydrofluoric acid, and two
[or three, according to the USES report] drums of Cecotrol,
with the active ingredients in Cecotrol being sodium
2-mercaptobenzothiazole and potassium hydroxide, a basic
rather than acidic solution. There was also a drum of
aluminum phosphate, a non-hazardous material. The PCI data,
like the USES data, do not reveal which, if any, of the drums
containing acidic compounds were leaking, nor indicate how
much of the contents of any of the drums may have leaked.

In a
letter to the New Orleans Fire Department dated December 13,
1999, USES further recommended that the electrical wiring in
the room be rewired by an electrician, because it may have
been affected by acid fumes. USES also revealed the results
of its "wipe tests."[5] A wipe sample performed on one of
the air vents in the east room revealed a pH of 2.88, with
additional wipe samples taken in the east room revealing pH
values between 3.44 and 5.18.[6] USES therefore stated:
"Since it is impossible to accurately determine the
extent of acid contamination, U.S.E.S. recommends that an
HVAC engineer assess the entire vent system for
removal." Wipe tests performed in the west room of the
basement and ducts in the west room revealed pH values of
6.21, 7.48, 4.77, and 6.45, closer to neutral. No wipe tests
were performed on any other floors or any other areas of the
building. The City ultimately relocated all of the offices
that had been housed in the Annex at 2400 Canal Street to
other City buildings.

On May
12, 2000, five plaintiffs, Thomas Anderson, Pamela Davenport,
Evelle Thomas, June Harvey, and Joseph Wong, filed a putative
class action against the City of New Orleans on behalf of all
persons who sustained harm because they were "exposed to
chemicals at 2400 Canal Street, " the City Hall Annex.
Plaintiffs alleged that the City was aware that
"hazardous, dangerous chemicals were present" but
alleged the City "nonetheless ordered petitioners and
those similarly situated to work in this dangerous
environment." Plaintiffs alleged that the City
"negligently and intentionally caused and/or
allowed" these chemicals to remain at the Annex.

Plaintiffs
amended their petition on April 6, 2001, to add Pan-Am as a
defendant. Plaintiffs alleged that Pan-Am placed the
chemicals in the building and that the storage of the
chemicals created an unreasonably dangerous condition within
the Annex. Plaintiffs again amended their petition to clarify
that Pan-Am was the former owner of the Annex, and plaintiffs
alleged that chemicals stored in containers not appropriate
for long-term use were used to clean Pan-Am's printing
presses. The amended petition contends that the
"leakage, spillage and/or diffusion of chemical
vapors" contaminated the building. Plaintiffs further
allege that the building's contamination persisted until
the chemicals were removed in December 1999.

In a
third amended petition filed on June 22, 2005, plaintiffs
added Poydras Square, Inc. and New Orleans Centre Associates,
a Louisiana partnership in commendam, as additional
defendants, arguing that Poydras Square owned the property
after Pan-Am.[7] Plaintiffs argue that even though Poydras
Square did not buy the chemicals, it allowed the chemicals to
remain on the property and it failed to warn of the alleged
danger associated with the chemicals.

As a
result of the alleged chemical exposure, plaintiffs claim to
have suffered from or continue to experience a variety of
medical problems including runny nose, coughing, sinus
problems, headaches, and eye problems. When plaintiffs filed
a motion to set hearing on class certification in 2014, their
motion indicated that the case had been pending for some time
[14 years] because their toxicological experts indicated that
the injuries to the class could not be fully determined
without the passage of time.

In
September and October 2015, after extensive discovery, the
trial court presided over a four-day hearing that included
live testimony of plaintiffs, Thomas Anderson and June
Harvey-Armour, as well as testimony from a number of expert
and fact witnesses. Plaintiffs introduced additional fact
witness testimony via deposition, plus the Claimant
Questionnaires of Thomas Anderson and Evelle Thomas and the
Client Form for June Harvey-Armour, three of the named
plaintiffs in the lawsuit.

Thomas
Anderson worked for the City from the mid-1980s through 2000.
He remembers seeing barrels when he first occupied a section
of the basement in the 1980s. He reported smelling a
"rotten egg" smell throughout the building. Mr.
Anderson testified that he never saw any of the drums
leaking. June Armour, another named plaintiff, began working
as a parking control officer in late October 1999. She spent
approximately one hour per day in the Annex basement for the
almost six weeks that she worked in the Annex before it was
evacuated on December 9, 1999. She never saw the drums in the
east room, but she said there was a funny, unpleasant smell.
Ms. Harvey-Armour complained of itchy eyes, runny nose,
asthma, sinusitis, and migraines. Her Client Form, introduced
into evidence, indicates that she was diagnosed with serious
allergies and chronic sinusitis before she ever began working
at the Annex in 1999. In addition, she admitted that she did
not see a doctor about any of her symptoms until many years
after she left the Annex at the end of 1999.

Patricia
Williams, Ph.D., plaintiffs' expert in toxicology,
epidemiology, and environmental exposure, among other
disciplines, testified regarding the adverse effects of
hydrochloric and hydrofluoric acids-effects that include
severe burns, skin redness or irritation, sinus problems,
asthma, and coughing. Dr. Williams also testified that these
compounds can cause cataracts and glaucoma.[8] Dr. Williams
agreed that the symptoms plaintiffs have alleged are
consistent with exposure to hydrochloric or hydrochloric
acid, but she also agreed that these symptoms are
non-specific, meaning that they can be caused by any number
of irritants and do not necessarily indicate acid exposure.

Plaintiffs'
expert in environmental science and chemistry, Paul Templet,
Ph.D., testified regarding the chemicals involved and how
people in the Annex may have been exposed. Based on the USES
"wipe tests" taken in the east room, the west room,
and the duct work in the east room after the December 9, 1999
incident, which returned pH levels in the low acidic range,
as well as the level of corrosion that USES found in the east
room, Dr. Templet believed that there was an acid leak over
an extended period of time and that the leak did not occur in
just one day. He believed that the inhalation exposure to
acid gases was "very likely and probable." He
stated that the basis for his opinion was the history of the
complaints, and that the acid leak could have started with a
pin-hole size leak to one of the drums containing acid.

On
cross examination, Dr. Templet agreed that there was "no
evidence prior to 1999" of the size of any acid leak. He
agreed that three metal drums (containing a base) were
leaking, and that the USES report indicated that it was
impossible to tell if any of the other drums (containing
acids) were leaking. Dr. Templet explained that if the three
metal drums containing Cecotrol had been leaking, the USES
wipe tests and the USES report would have indicated
hydroxides (bases) on the floor of the east room instead of
the acidic pH ranges that the wipe tests from the east room
confirmed. Dr. Templet agreed that the "rotten egg"
smell detected by some witnesses indicated a sulphur or
sulphur compound, and that sodium 2-mercaptobenzothiazole,
which is found in Cecotrol, would emit that odor; on the
other hand, that hydrochloric acid and hydrofluoric acid
would have an acrid, biting smell. Dr. Templet further agreed
that the wipe tests performed by USES could not be correlated
with any particular dose or exposure of the toxic compounds
to anyone in the vicinity.

Defendants'
expert in toxicology and industrial hygiene, James Rasmuson,
testified that the best evidence of the types of chemicals in
the barrels is to look at the three identified brand names
found on some of the barrels-Cecotrol, Deox, and
Aluma-Brite-plus the report from Pollution Control Industries
(PCI), the company that was tasked with disposing of the
barrels. The PCI report confirmed that the active ingredients
in Cecotrol are sodium 2-mercaptobenzothiazole and potassium
hydroxide. The City of New Orleans Emergency Incident Site
Safety Plan, as well as the USES report, also state that the
metal barrels that had corroded contained sodium
2-mercaptobenzotiazole and potassium hydroxide, the
components of Cecotrol.[9] Mr. Rasmuson testified that Cecotrol
smells strongly of rotten eggs or burned rubber but it does
not have any vapor pressure and does not pose an inhalation
threat if it remains in solution and is not sprayed. The
testimony of plaintiffs' experts, Dr. Williams and Dr.
Templet, did not contradict Mr. Rasmuson's testimony in
this regard.

Record
evidence shows that a Deox label was found on at least one of
the barrels in the east room. Deox contains a 5-10%
concentration of hydrochloric acid and citric acid. Mr.
Rasmuson stated that the acids in Deox are not very
concentrated and are not very volatile. The evidence showed
that at least three drums were Deox (or a similar solution)
that contained hydrochloric acid. Aluma-Brite, the third
brand name identified, contains 7-13% of hydrofluoric acid.
At least one drum of Aluma-Brite/hydrofluoric acid solution
was found in the east room. Also, one drum of aluminum
phosphate was identified, which Dr. Templet indicated is a
solid and is not characterized as a hazardous waste.
According to PCI's Material Data Survey found in the
record, there were 12 additional barrels of unspecified
"mineral acid" found. Mr. Rasmuson testified that
"mineral acids" could mean hydrochloric acid,
sulfuric acid, or more dilute acids, but the contents of
these barrels were never identified.[10] Mr. Rasmuson further
explained that acids are sold in plastic drums, not metal
drums, because plastic materials are not easily attacked by
acids.

In
contrast to Dr. Templet's testimony, Mr. Rasmuson opined
that there could not have been an acid leak for a long period
of time because the odor of acid is so irritating that no one
would have been able to be around it for very long. In other
words, the "odor threshold" was very low, and if
acids were present in dangerous quantities, someone within
the vicinity would have smelled it.

Dr.
Rasmuson testified that people who worked in the east room or
close to the east room in the basement could have been
exposed to hydrochloric acid above the acceptable
occupational exposure limits, but employees who worked in
other parts of the building would not have been exposed above
those limits. He also stated that glaucoma and cataracts
could not be caused by only low-level exposure to
hydrochloric or hydrofluoric acid. Finally, Dr. Rasmuson
testified that exposure to acid is not cumulative, meaning
that any potential long-term exposure in very low doses would
not result in subsequent damage.

Plaintiffs
also presented expert testimony of Mr. Joseph Handlin, a
mechanical engineer with experience in designing heating,
ventilation, and air conditioning ("HVAC") systems
and plumbing systems. Mr. Handlin explained his evaluation of
the HVAC system and, based on a number of assumptions that he
used in evaluating the system, he believed that air
contaminated with acid particles from the basement could have
circulated throughout the rest of the building.

In the
Amended Reasons for Judgment, the trial court described Mr.
Handlin's testimony as follows:

Mr. Handlin testified that hazardous chemicals in the air
could move from the east room in the basement and be
circulated through the remainder of the building. The AC

unit was served by a GE or fan room and another fan room
called GW. GA was connected to GE and the contaminated air
flowed from GE into GA and followed a duct path back to GE.
Then GE would be reconditioned in the fan room and
distributed to the upper floor via a duct chase. There was
also a HVAC system feeding the building from the penthouse
floor as well which was all interconnected. Air would have
moved from the air in the east print room where the chemicals
were stored and circulated throughout the building through
the HVAC, the elevators or the corridors and stairwells. Mr.
Handlin indicated that if chemicals were leaking over a long
period of time that would result in a greater amount of
chemicals being circulated throughout the building.

Mr. Handlin concluded that any of the three interconnected
handling units, AHU-GA, AHU-E or AHU-W would circulate
contaminated air throughout the ground floor area served by
this system and the small area on the first floor. He opined
the supply isolation dampers were open, permitting
contaminated air flow throughout the ground floor area served
by this system. Mr. Handlin opined that based on the corroded
fan scroll of AHU-E located in the east room, the unit
operated while corrosive air was present. Ultimately, Mr.
Handlin concluded the chemicals at issue would have
circulated throughout the HVAC system.

In
short, Mr. Handlin testified that if chemicals had
leaked over a long period of time, the return duct would be a
pathway for these particles to be distributed throughout the
rest of the building. In evaluating the system, Mr. Handlin
assumed that AHU-E was working during the time of the
chemical leaks. Mr. Handlin also assumed that the dampers for
the general HVAC system that serves other parts of the Annex,
AHU-GA, were closed, which would restrict the introduction of
fresh air into the building. Mr. Handlin acknowledged that
the USES picture taken on December 9 or 10, 1999, showed that
AHU-E did not have a door on it and further agreed that
during his inspection in 2008, the dampers for the general
HVAC system were open rather than closed. He also agreed that
upon moving farther away from "ground zero"
(farther from the east room), the air would become more
dilute due to the introduction of air from the above floors
and air from outside of the building. Finally, Mr. Handlin
stated that he did not find any abnormal corrosion in the fan
room of AHU-GA.

Defense
expert Ervin Ritter, a mechanical engineer who designs HVAC
systems, relied upon the report prepared by plaintiffs'
expert, Mr. Handlin, when evaluating the HVAC system in the
Annex. The trial court's iteration of Mr. Ritter's
testimony states:

[Mr. Ritter] concluded that the HVAC system would have
maintained a positive pressure in the upper five floors which
would have limited the exposure of the acid gases to the
ground floor. Mr. Ritter explained that the Annex had a
chilled water air conditioning system, which used two water
wells for the condenser side. The chilled water is then
circulated through cooling coils in the building. The system
is a hybrid coil system with spray coils, meaning air has
direct contact with the chilled water and then flows through
the chilled water coil. He indicated that water spray
provides the benefit of removing dust and airborne particles,
and also absorbing gas in the air path through the cooling
system. He pointed out that there were two fan rooms on the
ground level and two fan rooms in the penthouse, with ducts
that feed from the ground level upward and ducts feeding from
the fan rooms downward, all of which are connected together.
He concluded that air from the east room where the barrels
were found could not have circulated throughout the building.

Additionally,
Mr. Ritter testified that because AHU-GA had low levels of
corrosion, unlike AHU-E, which had a high level of corrosion,
he believed that the AHU-GA system was operating before and
on December 9, 1999, and serving the east room and west room
at that time. Mr. Ritter determined that AHU-E could not have
been operating on December 9, 1999, because the controls had
been "ripped out of it, " as depicted in the USES
pictures, and that it had not been operating for some time,
based on the amount of rust on it. Even if AHU-E had been
operating at that time, however, Mr. Ritter testified that it
would have circulated air in the area of the east room and
possibly to the west room. On cross examination, Mr. Ritter
agreed that some air from the east and west rooms on the
ground floor could have escaped to the first floor.

Mr.
Ritter further explained that any HVAC system must bring in
outside air to "flush out the contaminants of the human
body" such as carbon dioxide and water vapor. Mr. Ritter
calculated that the entire air volume of the building would
be exchanged once per hour. He found no evidence to indicate
that the dampers on the roof would fail to a closed position,
as Mr. Handlin assumed, because it was just as likely that
they could have failed to an open position. Similarly, Mr.
Ritter testified that Mr. Handlin could have assumed that the
dampers in the east and west room ...

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